Provisional Measures In International Civil Litigation

In the era of internationalization, resolution of foreign-related civil and commercial disputes challenges the corresponding disputes resolution mechanism. The values such as expediency, low-cost and foreseeability are strongly cherished in the handling of such dis-putes. As a traditional but still quite significant mechanism for disputes resolution, inter-national civil litigation should be restructured in the context of the deepening of the com-plexities and dimensions of the present-day international civil and commercial disputes. It is suggested that the resolution mechanisms for international civil disputes should respond to the practical demands, and the interim relief furnished by provisional measures is such an important legislative and judicial instrument as can effectively provide with the deeply-embedded values in contemporary international civil and commercial disputes resolution.Provisional measures feature in the resolution of international civil disputes as well as civil litigation. Due to the loosening of foreign exchange control and the development of electronic bank, cross-border transfer of funds becomes rather easy and almost simulta-neous. Against such a scenario, the interim protection brought by provisional measures turns into a striking phenomenon, in the sense of guaranteeing the enforcement of the re-sulting foreign-related civil judgments and preventing the unscrupulous defendants from challenging the authority of law, e.g., by moving their assets among countries fraudulently. In the meanwhile, provisional measures are also employed to maintain the status quo be-tween the parties concerned in the course of disputes resolution. Anyhow, the interim relief has gradually become a very significant and effective weapon in the resolution of interna-tional civil and commercial disputes, and its application broadens alongside the more and more reliance on the instrument by the parties. This part is discussed in Chapter One.For the time being, it is a fundamental reality that the application of provisional measures is predominantly governed by national laws. Provisional measures are a proce-dural mechanism in international civil litigation. Since procedural laws are characterized by cultural elements and territoriality, the structure of provisional measures is correspond-ingly saturated with strong cultural elements and territoriality, which determines that the operation of provisional measures is largely dominated by distinguished national laws. Consequently, our understanding of provisional measures also heavily rests on the relevant countries’ legislation or judicial practice. Furthermore, there hardly exists any difference between application of provisional measure in purely domestic context and that in interna-tional context. Indeed, the significance of provisional measures is widely recognized by countries and interim protection can be treasured as an internationally respected legal prin-ciple; nevertheless, the design and regulation of provisional measures vary from one coun-try to another. Such variation is embodied between not only countries but also legal fami-lies. Based upon a thorough comparative research, the thesis investigates the selected rep-resentative countries’ systems of provisional measures, e.g, those from the civil and com-mon law families, and expounds the distinctions and common grounds in their recourse to provisional measures. Generally speaking, there is a tendency of convergence in the setting of the purpose of provisional measures by individual countries, to wit:it is aimed to estab-lish a preliminary status quo between the parties or to guarantee the enforcement of final judgments. The aim is accomplished by arranging the three parties in the operation of pro-visional measures, e.g., applicants, respondents and courts. Provisional measures should be targeted at introducing a balancing mechanism, for the sake of achieving a procedural balance between the parties in the course of disputes resolution or international civil litiga-tion; to put it another way, balancing elements are injected in order to disrupt the pre-existing out-of-balance scenario. Due to the divergences in culture and legal tradition, countries vary from each other in terms of the specific design of provisional measures. Anyhow, in structuring provisional measures it is viable and preferable to strike a proce-dural balance between the three parties, with all the possible surrounding elements affect-ing such balance in mind. This part is explored in Chapter Four.As a whole, provisional measures encounter conspicuous dilemmas in the course of their operation in contemporary international civil litigation as well as in broad interna-tional civil disputes resolution. As seen from reality, marked differences exist between countries in applying provisional measures. Since such measures are deeply-embedded in the unique culture of individual countries, limited uniformity can be discerned in the re-course thereof in international civil litigation, which strikes a sharp contrast with their con-tinuously prominent practical and theoretical values. In summary, the main dilemmas re-siding in the contemporary operation of provisional measures can be summarized as fol-lows:the dilemma due to legal tradition or culture, the dilemma lying beneath the design and structure of the system, the dilemma in the context of international civil and commer-cial communications, the dilemma in terms of judicial cooperation and the dilemma fol-lowing the intervention of international law.Facing the aforesaid dilemmas, we must search for the ways out. From a theoretical perspective, harmonization or unification of provisional measures gets increasingly im-portant and necessary in the resolution of international civil and commercial disputes. For the establishment of a worldwide system of provisional measures, or harmonization or con-vergence of the individual countries’systems, two basic points must be paid attention to. First, the gap between individual countries’procedural systems, including those of provi-sional measures, is large. Second, it is viable for individual countries to harmonize or unify their procedural systems, which is based on the similarities or even some identities in their procedural systems. As provisional measures are deeply embedded in the national laws of individual countries for the time being and even in the long future, it is believed that to improve the legal system for provisional measures with the full participation of individual countries from the national law level would prove most fruitful. Furthermore, bearing in mind the international law outlook, the endeavors of the international community to reach a common and effective system of provisional measures is an indispensability for the ulti-mate perfection of the system of provisional measures. Before a uniform system in this regard is established, countries should deepen their judicial cooperation and further their mutual judicial confidence. The international community should also establish a favorable international legal environment for the role of provisional measures in international civil disputes resolution and civil litigation. This part is investigated in Chapter Five.Before the arrival of a unified legal system of provisional measures for international community, prominent among the issues are jurisdiction and the circulation of the effects of provisional measures, which deserves special attention. Such issues can play a critical role in the operation of provisional measures in international setting. As regards jurisdic-tion, it is universally established that the courts possessing jurisdiction over the merits of the cases are empowered to grant provisional measures; other courts, e.g., those where the assets in question are located or where evidence is traced, can also exercise such jurisdic-tion. Since provisional measures per se fall short of the finality requirement that is com-monly imposed on the recognition and enforcement of foreign judgments, these interlocu-tory decisions cannot enjoy free movement among countries. However, the effects of pro-visional measures get increasingly dependent upon the judicial cooperation and mutual trust between countries. It is required that more agreements should be reached on this mat-ter. Above all, the EU’s arrangements under the Brussels Judgments Regime present a good illustration. For jurisdiction and the recognition and enforcement of provisional measures, Chapters Two and Three are set to discuss these significant issues.China’s Civil Procedural Law explicitly prescribes for application of provisional measures, with other laws complementing the Law. In general, there exists a preliminary structure for provisional measures in Chinese civil litigation. Nevertheless, lots of prob-lems remain for the operation of provisional measures, e.g., no clear delimitation or speci-fication of the requirements, ambiguity of the effects, and the incomplete remedies for the parties concerned. These problems are reflected in Chinese courts’ judicial practice, which demonstrates that Chinese courts’ reasoning in the application of provisional measures are rather simple and mechanical. As a result, the due effects of provisional measures are far from achieved. Chinese law does not provides for independent rules for the operation of provisional measures in international context, and neither it does for any special arrange-ments for the international considerations. The status quo actually runs counter to the ap-plication of provisional measures in international disputes resolution before Chinese courts. The possible future restructuring of China’s legal system for provisional measures should be done in view of the international civil litigation and bearing in mind the endeavors and developments of international community in this field. This part is considered in Chapter Six.